IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No.57844/2016 (LB-RES) Between :
ATC Telecom Tower Corporation Pvt. Ltd.
A Company registered under the companies Act Having its registered office at 404, 4th Floor Skyline Icon near Mital Industrial estate, Andheri Kurla Road, Andheri (East), Mumbai-40059, Circle office at:
No.309, Sri Venkatesh Complex, 1st floor, Indiranagar, 100 feet Road, Bengaluru-560038, Represented by its Authorized Signatory, Mr. Anil Prasad. …Petitioner (By Sri Shivakumar N., Advocate) And :
1. The Divisional Commissioner / Joint Director, Urban and Rural Planning, Mangalore Municipal Corporation, Lal Baga, Mangalore, Dakshina Kannada District.
2. The State of Karnataka Represented by its secretary, Urban Development Department, Vikasa Soudha, Dr. Ambedkar Veedi, Bangalore-560001. …Respondents (By Sri S. Vishwajith Shetty, Advocate for R-1; Sri S. Chandrashekaraiah, HCGP for R-2) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the Annexure-J dated 08.08.2016 and direct the respondent preventing them from interfering with business in sharing the infrastructures with other telecom operators and maintaining and operating the mobile tower in the schedule property and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following :
ORDER The petitioner, ATC Telecom Tower Corporation Pvt. Ltd., has challenged the legality of the endorsement dated 8.8.2016, issued by the Joint Director of Urban and Rural Planning, Mangalore Municipal Corporation, whereby the Joint Director has instructed the petitioner to stop the work of installation of Mobile Tower with immediate effect.
2. Briefly the facts of the case are that the petitioner is a Company, which has been incorporated under the Companies Act, 1956. It claims that it has licence from Government of India, Ministry of Communications and Department of Telecommunication, for erecting and installing Telecommunication Towers, and for providing/sharing Telecommunication infrastructure for various mobile communication providers/service companies like Spice, Vodafone and BSNL. According to the petitioner, it basically identifies various locations for providing the infrastructure support, which would consist of tower, an Antenna, a shelter for keeping electronic equipment, and a stand for generator. Earlier, the petitioner was known in the name and style of “M/s. Essar Telecom Infrastructure Pvt. Ltd.,”. However, subsequently, it has changed its name and style as “ATC Telecom Tower Corporation Pvt. Ltd.,”.
3. In order to increase the coverage of the telecommunication companies, the petitioner had identified a property located in Survey No.2/1, formed by the Mangalore Urban Development Authority, Bhadoor Nagar Layout Extension located at Maroli Village, Mangalore Taluk, Dakshina Kannada District, measuring 650 Sq.ft. of the said property belonging to M/s. Dakshina Kannada Automobile & Tyre Dealers Association. Since the property in question was technically feasible for installation of the Telecommunication Tower, on 7.7.2016, the petitioner entered into a Lease Deed for fifteen years with M/s. Dakshina Kannada Automobile & Tyre Dealers Association. Subsequently, the petitioner started the ground work as per the specification, and in compliance with the guidelines issued by the Government. It has started the work of erection of the tower after intimating the officials of the Mangalore Municipal Corporation. However, the petitioner was shocked to receive an endorsement, dated 8.8.2016, issued by the Joint Director of Urban and Rural Planning, Mangalore Municipal Corporation, whereby the Joint Director has instructed the petitioner to stop the erection of tower. Hence, this petition before this Court.
4. Mr. N. Shivakumar, the learned counsel for the petitioner has raised the following contentions before this Court :-
Firstly, the Department of Telecommunications had issued an Advisory Guidelines to the State Governments on 1.8.2013, wherein the State Governments were directed to accept certain documents from those who wish to stall and erect a tower for the purpose of telecommunication.
Secondly, according to the Circular dated 2.3.2005, issued by the Government of Karnataka, the Local Bodies were instructed to grant permission to the Telecommunication companies to erect the tower on ground, terrace of the public/private buildings, or land falling under the residential, commercial, industrial, agricultural zone, subject to certain conditions. Despite the fact that the petitioner has not violated any of the conditions mentioned in the Circular, still the petitioner is being prevented from completing the erection work.
Thirdly, the only reason given by the Joint Director in the impugned endorsement is that the Mangalore Municipal Corporation had sought certain instructions from the Government, which are still awaited; secondly, there has been a complaint from the neighbours, where the proposed tower has to be erected. However, according to the learned counsel, neither of these two reasons are tenable. For, merely because the Government is yet to issue certain instructions, the petitioner cannot be faulted. Moreover, even if there were certain complaints, the petitioner has neither been given a copy of those complaints, nor an opportunity of hearing. Therefore, the impugned endorsement suffers from being unfair, reasonable and unjust exercise of power.
5. On the other hand, Mr. S. Chandrashekaraiah, the learned counsel for the State, submits that certain Rules have been drafted by the State Government, which will regulate the erection of such mobile towers throughout the State of Karnataka. However, the Rules have been published only in the draft form, and the objections from the public have yet to be invited. According to the learned counsel, till the Rules are framed, the respondents are justified in stopping the erection work.
6. Mr. S. Vishwajith Shetty, the learned counsel for respondent No.1, has equally justified the impugned endorsement on the ground that since the instructions were not received from the Government, and since the objections were raised by the public, the NOC could not be given to the petitioner by the Mangalore Municipal Corporation. Hence, the Mangalore Municipal Corporation was justified in directing the petitioner to stop the construction.
7. Heard the learned counsel for the parties, and perused the impugned endorsement.
8. It is neither the case of the Mangalore Municipal Corporation, nor of the State that the petitioner has violated any of the conditions mentioned in the Circular dated 2.3.2005. Moreover, neither of the two respondents have pleaded before this Court that the petitioner has violated the guidelines issued by the Department of Telecommunication dated 1.8.2013.
9. Even if the Rules have been published in a draft form, and the objections of the public have been invited upon the draft Rules, as of today, there are no Rules that cover the erection, or construction of mobile towers.
10. Moreover, merely because the Mangalore Municipal Corporation had sought certain instructions from the Government, and merely because the Government has failed to issue instructions, the petitioner cannot be faulted. Therefore, the first reason given by the Joint Director for stopping the construction work, is legally untenable.
11. Even if the Joint Director had received certain complaints from the neighbours, he was legally required to bring the said complaint to the notice of the petitioner, and to give an opportunity of hearing to the petitioner. Without giving an opportunity of hearing to the petitioner, the Joint Director has merely issued the impugned endorsement. Thus, the Joint Director has failed to follow the principles of natural justice. Hence, the impugned endorsement is clearly in violation of principles of natural justice. Hence, the impugned endorsement is legally unsustainable.
For the reasons stated above, this Writ Petition is, hereby, allowed. The impugned endorsement dated 8.8.2016, is set aside. No order as to costs.
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